EXHIBIT 10.5
CITIZENS BANK
MT. AYR, IOWA
June 30, 2000
TO: Xxxxxx X. Xxxxxx
RE: Chairman's Phantom Stock Long-Term Incentive Plan (the "Plan")
Dear Xxx:
This letter shall constitute an agreement between you and Citizens
Bank, Mt. Ayr, Iowa (the "Bank"); shall supersede the Plan dated December 17,
1999 between yourself and Citizens Bank, Chariton, Iowa, which is to be
merged into this Bank; and shall supersede the Plan dated December 17, 1999
between yourself and this Bank.
1. OFFICE. You have been appointed Chairman of the Bank and will
continue as such upon the merger into the Bank of Citizens Bank, Chariton,
Iowa State Bank, Hamburg and United National Bank of Iowa, Xxxxxx. Your base
compensation will be determined and agreed from time to time.
2. STOCK OUTSTANDING. There are 8,000 shares of common stock of
Bank outstanding. An undetermined number of additional common shares will be
issued upon conclusion of the merger. Other "deemed" shares are now
outstanding and others may be granted in the future.
3. PHANTOM STOCK. As of January 1, 1998 you were "deemed" to have
been issued one hundred seventy-four (174) shares of common stock of Citizens
Bank, Chariton, or 2% of the outstanding shares, and one hundred sixty (160)
shares of common stock of this Bank, or 2% of the outstanding shares. Upon
conclusion of the merger, you will be deemed to have been issued 1.2% of the
shares to be outstanding upon conclusion of the merger. The Bank will
maintain a record of such "deemed" shares, but no actual acquisition of such
shares shall be made nor shall any shares be issued to you or on your
account. You shall pay nothing for the deemed shares nor shall the Bank pay
you or your beneficiaries anything therefor. Such deemed shares are solely
for the purpose of calculating accruals to your account pursuant to this
Agreement.
4. EARNINGS ACCRUAL. Subject to paragraphs 5 and 6 hereof,
starting as of July 1, 2000, and ending as of the end of the month preceding
the month in which occurs the date of termination of your employment by Bank,
the Bank shall accrue an amount payable to you which shall be equal to the
total earnings per share of the Bank common shares which are deemed owned by
you for a full fiscal year as if you had in fact purchased such common shares
from the Bank; PROVIDED, in no event shall an amount be so accrued in excess
of 50% of the base salary paid to you in such fiscal year. In calculating
such earnings per share, the "deemed" common shares shall be divided into the
net after tax earnings of the Bank allocable to common stock (including all
"deemed" shares). Payment of cash dividends on common stock outstanding shall
not affect the amount allocated to the common shares "deemed" purchased by
you. Amounts so accrued shall not bear interest. Any partial year accruals
shall be computed on an annualized basis.
5. MINIMUM GOALS. The full accrual of earnings per deemed share
in any year will be made only if both the following minimum goals are
achieved: First, the net after-tax earnings of the Bank must exceed 1.3% of
average daily assets of the Bank. Second, the net after-tax earnings of the
Bank must exceed the prior year's net after-tax earnings by 10%; HOWEVER, if
this second goal is not achieved, and the current year's earnings exceed 1%
of average assets for the year, AND cumulative earnings of the Bank over the
5-year period ending with the most recent year exceed the cumulative earnings
which would have resulted from 10% compound annual earnings growth over such
5-year period, then the 10% earnings growth goal will be deemed to have been
met. If only one of the two goals is met, then one-half the earnings per
deemed share calculated under paragraph 4 hereof shall be accrued. If neither
goal is met, nothing shall be accrued. The Bank retains full discretionary
right to adjust earnings for any year from those otherwise shown on the
Bank's financial statements to, in its judgment, make the year's income
reasonably comparable to prior years and amortize or adjust for
extraordinary items. Without limitation, such adjustments may include
elimination of tax benefits due to carryover deductions or credits; change in
or correction of accounting methods, etc. Any such decision shall be made
within 45 days after the Bank's financial statements are furnished to it by
outside-auditors. If no change be so made in such time, the figures on the
Bank's financial statement prepared by outside auditors, audited or
unaudited, shall be used for all purposes of this Agreement, prepared under
generally accepted accounting practices, including amortization of intangible
assets. Should the Bank elect "S" status for federal income tax purposes, all
calculations shall be made for the purposes hereof as if the Bank continued
to be a "C" corporation.
6. MINIMUM EMPLOYMENT PERIOD TO VEST. In the event your
employment by Bank is terminated for reasons other than death, disability or
becoming employed by a company or bank affiliated with Bank, within six
months after the effective date of the merger described herein, all amounts
accrued to your account after June 30, 2000 shall be forfeited. There shall
be no forfeiture of amounts accrued to your account prior to July 1, 2000. An
"affiliate" for these purposes shall be deemed a bank or company 25% or more
of the voting stock of which is owned or controlled, directly or indirectly
by or for any holder (legally or beneficially) of Bank common stock, or
collectively by any spouse, parent or descendant or trust for such spouse,
parent or descendent of such holder.
7. PAYMENT ON RETIREMENT OR DISABILITY. The total amount accrued
to your account pursuant to paragraph 4 hereof shall be paid to you in 120
equal monthly installments, beginning on the 31st day of January following
the year in which you shall have terminated your employment with Bank, due to
retirement after having attained an age of not less than 65 years or due to
total and permanent disability as solely determined by the Bank
(disability"). In the event of termination of employment prior to age 65 for
reasons other than disability or death, the monthly payments shall begin in
January of the year following the year in which you attain age 65 unless the
Bank in its sole discretion elects to commence the payments at an earlier
date, based on the then present value of the accrued amounts.
8. PAYMENT ON DEATH. In the event of your death prior to age 65,
the monthly payments under this Agreement shall commence in the second month
following the month during which death occurred and payment shall be made to
the beneficiaries designated by you in writing or, in the absence of such
designation, to your spouse if such spouse survives
you, otherwise to your estate. In the event of your death when installments
from the accrual accounts have become payable because of retirement at or
after age 65, or due to disability, or due to attainment of age 65 when no
longer in the employment of the Bank, unpaid monthly installments shall
continue to be paid to your living designated beneficiaries or, if none are
so designated, to your estate. The Bank may discharge its obligations by
delivery of an annuity or prepaying the present value at the current rate for
ten year U.S. Government Bonds.
9. NO TRUST. The amount credited to your account shall not be
held by Bank in trust, escrow or similar fiduciary capacity and neither you
nor any legal representative shall have any right against the Bank with
respect to any portion of the account, except as a general unsecured creditor
of the Bank.
10. SPENDTHRIFT CLAUSE. Neither you nor any beneficiary entitled
to payment hereunder shall have any right to anticipate, alienate, sell,
transfer, assign or encumber any benefit or payment hereunder nor shall such
rights thereto be subject to attachment or other legal process for your or a
beneficiary's debts.
11. ANTI DILUTION AND DILUTION. In the event of any common stock
split or common stock dividend by which shares of common stock are issued for
no new consideration, the number of shares "deemed" owned by you hereunder
shall be adjusted accordingly. If new common shares are sold at more or less
than the then book value (as determined under generally accepted accounting
principles), or if capital is contributed to the bank without the issuance of
shares, an appropriate adjustment (upward or downward) will be made to adjust
the number of outstanding shares for the purpose of these calculations, as if
the issued shares had been sold at book value as of the end of the calendar
quarter preceding the sale, or as if shares had been issued at book value in
consideration of such contributions of capital. (This paragraph shall not
apply to the shares to be issued as a result of the merger contemplated
herein.)
12. TERMINATION OF PLAN. The Bank reserves the right at its sole
option to terminate the Plan at the end of any fiscal year of the Bank by
written notice to you prior to the end of such fiscal year, and, in such
event, the deemed shares shall be cancelled and no further accruals shall be
made with respect thereto. In the event of such termination, subject to
paragraphs 6 and 13 hereof all amounts accrued to your account shall be
vested in you.
13. COVENANT NOT TO SOLICIT CUSTOMERS.
a. DURING EMPLOYMENT. During the period of your employment with
the Bank, you shall not, directly or indirectly, solicit or work for
existing Bank customers, or prospective customers with whom Bank is
discussing a business relationship, for your own account, or for the account
of one or more of Bank's competitors, with a view to providing, then or at a
future date, goods or services of a nature similar to those provided by
Bank.
b. AFTER EMPLOYMENT. For a period of twenty-four (24) months
following your separation from employment with Bank, voluntarily or
involuntarily, with or without cause, you shall not solicit or work for,
directly or indirectly, existing Bank customers with whom you actually did
business and had personal contact, or prospective Bank customers with whom
you actually discussed a business relationship and had personal contact, for
your own account or for the account of one or more of the Bank's
competitors, with a view to providing, then or at a future date, goods or
services of a nature similar to those provided
by the Bank to those customers, or offered or presented by the Bank to those
prospective customers. Termination or other separation of your employment
with the Bank shall not affect the validity or enforceability of the
provisions of this Covenant.
c. SCOPE OF COVENANT. This Covenant shall apply only to the
following: (1) Existing Bank customers with whom you actually did
business and had personal contact; and (2) Prospective Bank customers
with whom you actually discussed a business relationship and had personal
contact. A prospective Bank customer is defined as any person or entity
you have actively solicited during the 12-month period immediately prior
to the termination of your employment with the Bank. This Covenant shall
apply only to goods or services similar in nature to those offered by the
Bank.
d. VIOLATIONS. Should you violate this Covenant not to compete,
any amounts otherwise due you pursuant to this Agreement shall be forfeited,
and any amounts previously paid hereunder shall be refunded by you to the
Bank. Bank may further exercise its rights against you or any third party,
in law or in equity, in the event you solicit Bank customers in violation of
this Agreement or applicable statutory provisions.
14. TRADE SECRETS. The parties agree that the following
information, without limitation, shall constitute "trade secrets" for the
purposes of Iowa's Trade Secrets Act and that the Bank makes reasonable
efforts to maintain the secrecy of its information:
a. Names, addresses, telephone and fax numbers, account balances,
loan balances, trust relationships, financial statements and credit reports
concerning Bank customers.
b. The Bank's pricing models for loans, deposits and other
financial services.
c. The Bank's expansion plans, whether through new geographic
locations, proposed products and services, or through new means of
distributions such as the internet.
d. The Bank's strategic and marketing plans.
By accepting this Agreement, you agree not to disclose the Bank's
trade secrets to anyone except other Bank personnel (or personnel of
affiliates or vendors in ordinary course of business) in the course of your
employment with Bank during or for a period of two years following
termination of your employment by the Bank.
In the event you disclose the Bank's trade secrets in violation of
this Agreement, all amounts otherwise due you hereunder shall be forfeited,
and any amounts previously paid hereunder shall be refunded by you to the
Bank. Bank may further exercise its rights against you or any third party, in
law or in equity, in the event you reveal the Bank's trade secrets in
violation of this Agreement or applicable statutory provisions.
15. NON-HIRE AGREEMENT. In the event of termination of your
employment, voluntarily or involuntarily, with or without cause, you shall
not, for a period of twelve (12) months following such termination, hire,
seek to hire, or encourage your employer or any other person to
hire any person who was an employee of the Bank on the date of announcement
to the Bank or to any such employee of termination or the decision to
terminate your employment. Further, you shall not attempt to induce any such
employee to leave the employ of the Bank to work for you or any other person,
firm or corporation during such period. Should you violate this non-hire
agreement, any amounts otherwise due you pursuant to this Agreement shall be
forfeited and any amounts previously paid hereunder shall be refunded by you
to the Bank. Bank may further exercise its rights against you or any third
party, in law or in equity, in the event you violate this non-hire agreement
in violation of this Agreement or applicable statutory provisions.
16. SALE/SEVERANCE. In the event of the sale of Bank, then there
shall thereafter be no forfeiture under paragraph 13 of amounts otherwise due
you because of your engaging in any act set forth herein if your employment
by Bank was terminated: (a) involuntarily, or (b) voluntarily in the event
you shall have been demoted from the position of President of the Bank or if
your base salary shall have been reduced below the level at which it stood at
the beginning of the year in which such sale was concluded. For these
purposes, a "sale" shall be deemed to have occurred in the event that both of
the following occur:
(x) Xxxxx X. Xxxxxx, his family and trusts, corporations or other
entities controlled by him or his family (including descendants and spouses
of descendants of Xxxxx X. Xxxxxx) collectively fail to own directly, or
indirectly whether through a holding company, outright or in trust, in the
aggregate, at least 51% of the Voting stock of the Bank, and
(ii) There is at least 25% ownership of Bank vested in some other person
or entity.
17. CAPTIONS. The captions of the paragraphs are for
identification only and do not affect the meaning of the text.
18. BINDING ON PARTIES. This Agreement shall be binding on and
inure to the benefit of the parties hereto, their heirs, personal
representatives and successors in interest.
19. GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Iowa.
20. PRIOR PLAN. The Chairman's Phantom Stock Long-Term Incentive
Plan dated December 17, 1999 with Citizens Bank, Chariton and with Citizens
Bank, Mt. Xxx, shall govern all benefits to be accrued thereunder through
June 30, 2000, and benefits thereafter shall be accrued hereunder. The Bank
will assume obligations to you of Citizens Bank, Chariton following the
merger. The Provisions of this Agreement shall determine all matters
concerning the Plan, and accrued benefits.
Please indicate your acceptance of the terms of this Agreement by
signing below.
CITIZENS BANK, Mt. Ayr, Iowa
By: /s/ Xxxx X. Xxxxxxx
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President
Accepted:
/s/ Xxxxxx X. Xxxxxx
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